Roberts' Rules of OrderScratching Deeper than the Smile and
the Judicial Veneerby Zbignew Zingh
www.dissidentvoice.org
September 16, 2005

For
the most part, the Senate Judiciary Committee's inquiry into John Roberts'
nomination to the Supreme Court is just window dressing. His nomination
was assured in November 2004 -- as were the next three
[1] nominations to the Supreme Court -- when the Republicans gained
hegemony in the executive and legislative branches of the government.
Notwithstanding all our angst about who we believe should and should not
be appointed to the Supreme Court, the reality is that George Bush and his
Republican majority in the Senate will appoint anyone they like for a
lifetime tenure on the federal bench.

Unless photographs
appear showing Mr. Roberts in bed with a live boy or a dead girl[2], or unless the Democrats are willing to finally play
their filibuster card (and the odds are 10,000 to 1 that they will not),
there is simply no way for the minority party to prevent these judicial
appoints. If you think that John Roberts is bad, he will soon have more
bad company. As the left exhausts itself in vetting and opposing his
nomination, it will wear itself out for the time when Mr. Bush gets around
to nominating the ultra extreme right-wing ogres to the judiciary.
However, this next batch of judicial nominees also will take their cue
from John Roberts. They will be ciphers about how they might rule and they
will cloak themselves in ambiguous judicial platitudes.

The next round of
conservative judicial nominees after John Roberts also may well
satisfy the superficial faux-liberal demand that the Supreme Court
represent a broad spectrum of race, religion, ethnicity and gender.
Unfortunately, the conservatives have successfully outdone liberal
identity politics and the Right will easily nominate judicial candidates
of the likes of Clarence Thomas, Condoleezza Rice, Albert Gonzalez, or U.C.
Berkley's John Yoo. Race, ethnicity, religion and gender are completely
irrelevant if the judge has no heart, no empathy, no memory, no guts and
no identity other than with the Power that appoints the office.

This, then, is the
ultimate legacy of the Democratic Party's 2000 and 2004 loser's strategy
of trying to be Bush-lite, the strategy of avoiding a clear distinction
between themselves and the Republicans, the legacy of being
anybody-but-Bush but nobody else worth voting for. The Supreme Court was
the supreme political prize, and the Democrats lost it for lack of
courage, principle and grit. To undo the damage in the future will require
a massive political shift in the makeup of the Congress and the presidency
and, perhaps, an FDR style plan to pack the Supreme Court.

Historically, the US Supreme Court has been
a bulwark of conservatism. It is only in the recent memory of the affluent
1950s and 60s that the Supreme Court slightly opened its eyes and hearts
to human rights rather than just property rights. Remember that,
historically, the Supreme Court could not be counted on to overthrow
slavery in this country or to give non-whites or women the vote. It took a
hundred years, a civil war, and four hard-fought amendments -- the 13th,
14th, 15th and 19th -- to establish some of the basic concepts we take for
granted. Previous Supreme Courts simply could not discern any prohibition
against slavery or any women's franchise in the US Constitution. And,
unfortunately, they were right: the Constitution itself literally does not
espouse such basic human rights.

Thus, when John
Roberts tells us not to worry because he means only to enforce the
Constitution and “referee” the interpretation of the Law, we should be
very, very worried indeed. We should be worried because the principles
by which John Roberts will “referee” are atavistic.

On the other hand,
John Roberts presents himself as a pragmatist who is not always bound by
the literal words of the Constitution. He promises to accord the proper
“respect” for judicial precedence. He has suggested that the law and the
Constitution must evolve as society and its expectations evolve. None of
these ambiguous comments provide solace for your greatest fears. A Supreme
Court Justice may accord prior case law “respect” as he proceeds to gut
it, just like a hunter might respect his quarry, then kill it and eat it
for dinner.

The “pragmatist” who
regards the Constitution as a mere tabula rasa will be prone to
Korematsu-like decisions, by which Japanese-Americans (or Arab
Americans or Chinese or Jews or Blacks or any other suspect-people-du-jour)
could be put in concentration camps because of the perception of an
imminent threat. Although Mr. Korematsu's WWII criminal conviction was
overturned decades later, the “pragmatic” judicial approach to his case
still accomplished its immediate goal: Japanese Americans remained
interned until the end of the Second World War.

John Roberts'
judicial philosophy, therefore, fits in better with those “pragmatic”
judges who will serve the immediate crisis of the moment or the passion of
the times and worry later about its ramifications. In short, John Roberts
will think and act like a politician. An example of his political thinking
is Roberts' recent appellate court opinion in Hamdan v. Rumsfeld
upholding the use of military tribunals for so-called “enemy combatants”
designated at will by the President.

Although the US Constitution contains some
salutary provisions regarding governmental rules of order, it expresses
very little concern for the rights or interests of people. Mostly, the US
Constitution itself concerns the regulation of commerce, the stability of
the currency, the sanctity of contract and property, the relationship
between the states and the federal government, the creation of a governing
infrastructure, and the maintenance of the military, which is what the
original 18th Century Federalists had in mind. [3] By
comparison, the Declaration of Independence is a truly radical,
revolutionary manifesto that even Vietnam's Ho Chi Minh admired. The
Declaration of Independence, however, is not a part of the Constitution.
Together with the later adopted first ten amendments, the Declaration of
Independence and the Bill of Rights form a humanist sandwich around the
much more staid Constitution.

The core of the
Republican Party is completely unconcerned with issues of morality or
religion, except insofar as these moral/religious issues are the necessary
pay-off to a constituency that facilitated Republicans' ascendancy The
core of the Republican Party is concerned, as it always has been, with
power, money and control. Although the Ayatollah Pat Robertson and his ilk
seek to establish a pseudo-Christian theocracy, the power elite at the
helm of the Republican Party really could care less about abortion rights,
gun control, religious issues or criminal law for the masses. They, at the
helm of power, know that they can always afford whatever they want
or need, be it an abortion or pornography or access to arms, regardless
what the Law holds. It has always been so in every land. They will yield
to the Christian Right the petty moral ground that the moralizers crave,
while the rich and powerful will take the commanding heights of wealth and
power.

Thus, John Roberts
is the favorite son of the Republican business interests, more so than the
Religious Right. Although his sphinx-like approach to constitutional
construction presents a danger to reproductive and civil rights, he
represents an even more profound threat to the fundamentals of our
society.

The Supreme Court is
the final arbiter of American Law. In at least one major sense, John
Roberts is completely wrong. A Supreme Court Justice does not “referee”
the law. A Supreme Court Justice is the law, for there is no higher
authority. The “rule of law” applies mostly to the lesser classes and
especially in the lower courts of local jurisdiction. The higher one rises
in the judicial system, however, the more the “rule of law” becomes a rule
of policy until, at the level of the Supreme Court, it is all about
policy, American mythology notwithstanding. Politics and personal
relationships and experience and extra-legal policy concerns decide the
issues, although the decisions will still be wrapped in the “rule of law”.

Throughout his
vetting, John Roberts will duck and parry the hard questions about how he
would decide particular questions that will come before the Supreme Court.
He can do that because a judge literally cannot prejudge an issue before
hearing the case. There are means, however, to scratch beneath this
judicial veneer to expose the two centuries old thinking that rules him.

Therefore, let John
Roberts and the next passel of Bush judicial nominees be asked questions,
not about future cases that they cannot yet decide, but about how they
would have decided past issues based on their particular constitutional
dispositions.

Ask John Roberts
(and all of the subsequent Bush nominees), if it were the United States
just prior to the Civil War and prior to the 13th Amendment that abolished
slavery, how would he rule in a case, like that of Dred Scott,
whether a slave was a Man or Property? Are not John Roberts' referee-like
views on interpreting the Constitution consistent with those expressed by
Chief Justice Taney in 1857:

It is not the
province of the court to decide upon the justice or injustice, the policy
or impolicy, of these laws. The decision of that question belonged to the
political or law-making power; to those who formed the sovereignty and
framed the constitution. The duty of the court is, to interpret the
instrument they have framed, with the best lights we can obtain on the
subject, and to administer it as we find it, according to its true intent
and meaning when it was adopted.

In short, would the
21st Century Chief Justice of the Supreme Court have upheld slavery as
surely as did the 19th Century Supreme Court, and based on the same legal
reasoning? Would a 19th Century Chief Justice Roberts have “respected” the
precedence of decisions upholding slavery? Would he have upheld slavery
because that was the intention of the antebellum Constitution and the mood
of the times? He would deny it, but John Roberts' legal logic says that he
would.

Ask John Roberts
(and all of the subsequent Bush nominees), if it were the United States
prior to the adoption of the 19th Amendment, and the issue was Does A
Woman Have the Right to Vote? Would Justice Roberts have searched in vain
for women's rights in the Constitution and, finding none, have ruled that
women have no franchise under the Law? Would he have “respected” legal
precedence that barred women from the ballot box or would he have ruled
according to the natural justice of gender equality? Would a 19th Century
Justice Roberts have denied women the vote because this was the political
reality of the times? By his judicial attitude, that would have been his
ruling, which dreadfully informs you about the man's mindset.

Ask John Roberts
(and all of the subsequent Bush nominees) whether the 14th Amendment, by
which the guarantees of the Bill of Rights and the abolition of slavery
were extended to all the states, was a bulwark of our human rights,
or was it meant to apply to and protect corporations? Here John
Roberts would get tongue-tied because there is no sensible nor historical
nor literal interpretation of the 14th Amendment by which it should apply
to corporations; and yet, over time, the overwhelming number of cases
and judicial decisions relating to the 14th Amendment have been
precipitated by immortal, artificial, profit-oriented corporations seeking
-- and gradually winning -- more and more of our human rights
accorded by the Bill of Rights.

Thus, ask the
enigmatic John Roberts, would he defer to the clear intention of the 14th
Amendment or “respect” the line of precedents that extend human rights to
inanimate corporations? Would he rule, as he should, that Corporations are
Not Real People and, therefore, they have no 1st Amendment, 4th
Amendment or 5th Amendment rights; no corporate right, therefore, to make
bazillions of dollars in political contributions, no corporate right to
flood Washington with lobbyists, no corporate right to put their
advertising on our roads or in the airwaves or in our schools, no right to
mine or exploit our natural resources, no corporate right to federal
subsidies paid out of the people's pockets, no right to prevent the
organization of labor, no right to buy up the public bandwidth and
monopolize the media? In short, would John Roberts, as a matter of
constitutional law, agree that Human Rights always trump Corporate Rights
[4], and that was clearly the intention of the 14th
Amendment? Or, would the ever-pragmatic Justice Roberts accord greater
respect to the creeping stare decisis that supports corporate civil
rights rather than the common sense logic that corporations are not real
people and, therefore do not have, and were never intended to have
civil rights?

Ask John Roberts
(and all of the subsequent Bush nominees) how, under Article I, Section 8
of the Constitution, it says that only the Congress can declare War, but
somehow, since 1945, the United States has fought war after war after war
without any such congressional declaration?

Ask John Roberts
(and all of the subsequent Bush nominees) whether, under his construction
of the literal words of the same Article I, Section 8 of the Constitution,
copyrights and patents should be secured for only a limited time
and to the actual authors and inventors, rather than be secured
virtually forever by corporations and those who contractually acquire
“intellectual property?”

We know, of course,
how John Roberts would try to answer and to evade answering these
questions. He will straddle the fences and, almost mockingly, confound the
questions with ambiguity. Thus will he have the latitude to rule
“pragmatically”, or, in other words, according to his own agenda and
inclination. We also know that John Roberts would be confirmed as Chief
Justice, the youngest ever in the last two centuries of the Supreme Court
and one whose influence will outlast our lifetimes.

It is worthwhile
posing these questions, nonetheless, because by vetting John Roberts and
the subsequent Bush judicial nominees through these fundamental questions,
we can warn and educate Americans about the profound dangers that confront
them behind the amiable, slightly mocking smile and the veneer of judicial
inscrutability.

Zbignew Zingh
can be reached at Zbig@ersarts.com.
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REFERENCES

[1] Including the
retirement of Sandra Day O'Connor, two more justices are of very advanced
age or in questionable health.[2] Former Louisiana Governor Edwin
Edwards once boasted that, despite issues of graft and scandals that
swirled around him, he would be reelected unless he was caught in bed with
a live boy or a dead girl.[3] Yes, the
Federalists who championed the adoption of the US Constitution were the
original gang after whom Mr. Roberts' favorite conservative fraternity,
the Federalist Society, have styled themselves.
[4] Both Thomas Jefferson and James Madison tried, and failed to
incorporate an 11th Amendment into the Bill of Rights. It would have
prohibited monopolies in commerce, prohibited corporations from owning
other corporations, outlawed corporate politicking, and mandated that
corporate charters issue only for service of the common good.